Ryanair Ltd v Club Travel Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 23 March 2012
• Neutral Citation: [2012] IEHC 165
• Date: 23 March 2012

[2012] IEHC 165

THE HIGH COURT

[No. 1715 P/2012]

Ryanair Ltd v Club Travel Ltd

COMMERICAL

BETWEEN

RYANAIR LIMITED

PLAINTIFF

AND

CLUB TRAVEL LIMITED

DEFENDANT

COPYRIGHT & RELATED RIGHTS ACT 2000 S127(2)

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88

KINSELLA v MCALEER & ORS UNREP CLARKE 24.4.2009 2009/31/7768 2009 IEHC 237

RYANAIR LTD v BILLIGFLUEGE.DE GMBH UNREP HANNA 26.2.2010 2010/45/11393 2010 IEHC 47

EEC REG 261/2004 ART 5

INJUNCTIONS

Interlocutory injunction

Prohibitory injunction - Website - Flight services - Terms of use - Extraction of flight data information - Copyright - Database - Whether defendant operating as consumer - Whether defendant bound by terms of use of plaintiff's website - Passing off - Whether fair issue to be tried - Whether arguable case - Whether damages an adequate remedy for plaintiff - Whether plaintiff able to provide specific examples of loss as a result of defendant's activity - Whether plaintiff's apprehensions unreal and fanciful - Balance of convenience - Whether defendant carrying on activity for some time - Whether credible evidence that defendant would suffer significant loss and damage if interlocutory relief granted - Whether grant of relief would cause great hardship and inconvenience to defendant - Whether conflicts of fact capable of resolution in interlocutory application - Campus Oil Limited v Minister for Energy (No 2) [1983] IR 88 applied; Kinsella v McAleer [2009] IEHC 237 (Unrep, Clarke J, 24/4/2009) followed; Ryanair Ltd v Billigfleuge.de GmbH [2010] IEHC 47 (Unrep, Hanna J, 26/2/2010) distinguished - Application refused (2012/1715P - McGovern J - 23/3/2012) [2012] IEHC 165

Ryanair Ltd v Club Travel Ltd

Facts The plaintiff was an international business low fares airline. The defendant was an internet travel agent. The plaintiff claimed that the defendant was engaged in a practice whereby it was selling Ryanair flights as part of its package holidays and that this was contrary to the plaintiff”s exclusive distribution clause as per the conditions of use of its website. It was submitted that the defendant was engaged in “screen scraping” whereby it was taking information from a database created by the plaintiff. On behalf of the defendant it was submitted that it was the consumer who deployed the internet search and booking engine and it was the consumer who entered into the contract with the plaintiff. At all times, booking details were being provided to the plaintiff, identifying who the passenger was. The plaintiff sought an interlocutory injunction seeking to prohibit the activities of the defendant from allegedly infringing the database rights of the plaintiff. It was also contended that losses would arise as people availing of the defendant”s services would get access to Ryanair flights without being exposed to the advertising which was an integral part of the plaintiff”s website.

Held by McGovern J in refusing the relief sought: The court did not accept that the case of Ryanair Ltd. v Billigfluege GmbH [2010] IEHC 47 was sufficient authority for the arguments of the plaintiff. It was accepted that the plaintiff had established that there was a bona fide question to be tried on many of the points raised although it had not established that threshold in relation to the passing off claim. The plaintiff had not been able to give any specific examples of actual losses sustained as a result of the defendant”s activity. A number of the plaintiff”s apprehensions were somewhat unreal and fanciful and there was no evidence that it had suffered any loss which could not be dealt with by way of damages. The defendant had been carrying on business in the manner complained of for a couple of years without interference and had produced credible evidence to show that it would suffer significant loss if an injunction was granted. The balance of convenience favoured making no interlocutory order in this case and the plaintiff”s application would be refused.

1 1. This is an application for interlocutory injunctions set out in the following terms in a notice of motion dated 23 ^rd February, 2012:

2 2 "1. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from offering for sale, and selling, the plaintiff's flight services separately and/or as part of a package holiday as sold on the defendant's website.

2 2. An order by way of Interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from using Ryanair's website in breach of the terms of use thereto.

3 3. An order by may of Interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from infringing the database rights of the plaintiff, including (but not limited to), by use of, or procuring the use of, software or other system to extract data including flight information from Ryanair's website for the use on the defendant's website for commercial purposes.

4 4. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from using data and/or information extracted from Ryanair's website or regarding services provided by the plaintiff, on any and all websites owned, controlled and/or operated by the defendant, its servants and/or agents.

5 5. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from infringing the database rights of the plaintiff, by establishing and operating unauthorised links to the plaintiff's website from the defendant's websites.

6 6. An order pursuant to section 127(2) of the Copyright and Related Rights Act 2000 or otherwise, by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents, from infringing the plaintiff's copyright in the database of flight information contained on its website.

7 7. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from passing off its search and booking services as being connected with the plaintiff's search and booking service by presenting the plaintiff's flight data on the defendant's websites and selling holiday packages that comprise, in part, of the plaintiff's flight services.

8 8. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from adding unauthorised and concealed charges to the cost of the plaintiff's services in such a manner as to give the impression that such charges are imposed by the plaintiff thereby misleading consumers.

9 9. An order by way of interlocutory quia timet injunction restraining the defendant, its servants and/or agents from further breaching the Terms of Use of Ryanair's website.

10 10. An order by way of interlocutory quia timet injunction restraining the defendant, its servants and/or agents from further...